Today’s case, to DeWitt v. Southwestern Bell Telephone Company deals with the honest belief rule. This rule allows an employer to justify a termination if it honestly believes its reason for doing so was valid regardless of whether it actually was. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the sections.

I

Facts

Plaintiff has type I diabetes and is insulin-dependent. She monitors her blood sugar levels many times a day. When her blood sugar levels are relatively low, she experiences sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. She told her managers at Southwestern Bell telephone that she had diabetes and that she may experience low blood sugar levels. At such times, she would need to eat or drink something to correct it. Throughout her employment, defendant allowed her to take breaks to eat or drink in order to raise her blood sugar as needed. On January 21, 2010, plaintiff mistakenly left phone service on a customer’s account after the customer canceled the service. Such an action is known as a cramming violation, which is the failure to remove the service plan from a customer’s account after the customer canceled the service. Such an act is a violation of the defendant’s code of business conduct and a terminable offense. Plaintiff was suspended the following day. On January 29, 2010, plaintiff attended a meeting to address the cramming incident and determine her punishment. As punishment for the cramming violation, her second line supervisor in consultation with the third line supervisor decided to place her on a last chance agreement. That agreement stated that even one incident of failing to maintain satisfactory performance in all components of her job would lead to further disciplinary action up to and including dismissal. Two months later, plaintiff suffered a severe drop in blood sugar while at work and was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, plaintiff experienced lethargy, disorientation, and confusion, and was unable to communicate with anyone. Plaintiff noticed that she was locked out of her computer and called her first line supervisor for assistance. Instead of addressing the computer issues, he informed a manager that he had been monitoring plaintiff’s calls and that she had hung up on at least two customers. The manager responded by doing a dance and saying, “I finally got that bitch.” The first line supervisor told the manager that her behavior was not appropriate whereby the manager responded, “you don’t understand. I’ve been chasing after her long before, since you got here.” A meeting subsequently ensued to discuss the incident whereby the plaintiff said she simply didn’t remember hanging up on people due to her blood sugar not being in control at the time. Nevertheless, the defendant terminated her on March 15, 2010. Plaintiff brought suit and defendant defended on the honest belief rule.

 

II

Court’s Reasoning

In affirming the lower court’s grant of summary judgment for the defendant, the 10th circuit reasoned as follows:

 

  1. When it comes to prtext, the court’s role is not to ask whether the employer’s decision was wise, fair or correct, rather it is to ask whether the employer honestly believed the legitimate nondiscriminatory reason it gave for the conduct and whether it acted in good faith on those beliefs.
  2. Mistaken or poor business judgment is not sufficient to show that an employer’s explanation is unworthy of credibility.
  3. The role of the court is to prevent intentional discriminatory practices and not to act as a super personnel department second-guessing employers’ honestly held, even if erroneous, business judgments.
  4. The critical question is whether a reasonable factfinder could reasonably find the employer’s rationale unworthy of credence.
  5. Plaintiff could not identify any evidence from which a reasonable jury could rationally find that her disability and not the drop calls motivated her termination.
  6. The third line supervisor had a reasonable basis to believe that plaintiff intentionally hung up on the customer considering the complex nature of the hang up process.
  7. Once an employer has put forth a legitimate, nondiscriminatory reason for terminating an employee, the employee may access a variety of evidentiary tools in order to expose the employer’s stated reason is pretext. For example, a plaintiff may raise a triable inference of pretext by showing weaknesses, implausibility, inconsistencies, incoherency, or contradictions in the employer’s stated reason for terminating the employee.
  8. Another option, and a particularly good one, for the plaintiff is to demonstrate that the employer treated employees similarly situated to the plaintiff differently.
  9. So, the honest belief doctrine does not prevent a plaintiff from showing pretext vis-à-vis McDonnell Douglas. Instead, the honest belief doctrine contemplates that an employer would have professed an honest belief in the legitimate nondiscriminatory reason for the adverse action. Even so, that then establishes the context for an employee to test the plausibility or coherency of the reasons supposedly underlying that honest belief with the aim of showing that such a belief actually may not be honestly held. So, it is up to the plaintiff to marshal evidence undercutting the operation of the honest belief rule.
  10. A case out of the Sixth Circuit, Smith v. Chrysler Corporation, turns everything on its head by requiring the employer to establish reasonable reliance on specific facts before it at the time the decision was made. The 10th Circuit has recognized no such obligation on the part of the employer. While the employer certainly can fortify its litigation position by the identification of specific facts it reasonably relied upon in forming its honest belief, McDonnell-Douglas does not require the employer to do that. In a footnote, the court noted that adopting the 10th Circuit rule would not help the plaintiff in any event.
  11. Plaintiff’s failure to accommodate claim fails because instead of requesting a reasonable accommodation to address concerns regarding the possibility of drop calls, she requested retroactive excusal for her misconduct. It simply doesn’t work that way. That is, the ADA as amended does not require an employer to reasonably accommodate an employee’s disability by overlooking past misconduct regardless of whether the misconduct resulted from the employee’s disability.
  12. EEOC Enforcement Guidance states that the requirement to provide reasonable accommodations is always prospective and that an employer does not have to excuse past misconduct even if it is the result of a person’s disability.
  13. Several other Circuits have also said that a requested accommodation excusing past misconduct is unreasonable as a matter of law. So, the ADA as amended does not require employers to accommodate employees with disabilities by overlooking past violations of a workplace rule.
  14. Southwestern Bell Telephone Company code of business conduct is a workplace rule.
  15. Employers are permitted under the ADA as amended to apply the same performance standards to employees with disabilities applicable to employees without disabilities.
  16. An employer has no obligation under the ADA as amended to excuse performance problems occurring prior to an accommodation request.

III

Takeaways:

  1. This is a mixed decision. On the one hand, the honest belief rule most certainly benefits employers over plaintiffs. On the other hand, the 10th Circuit makes it clear that the honest belief rule is not a get out of jail free card for an employer.
  2. For example, evidence of differential treatment and any evidence showing weaknesses, plausibility, inconsistencies, incoherency, or contradictions is fair game for the plaintiff. For a case where the plaintiff did exactly that, see Caldwell v. KHOU-TV.
  3. An employer does not have to overlook an employee’s past misconduct regardless of whether that misconduct resulted from the employee’s disability.
  4. Employers are permitted under the ADA to apply the same performance standard to employees with disabilities applicable to employees without disabilities. While true, don’t forget about reasonable accommodations if you are the employer.
  5. Since an employer is not required to excuse performance problems occurring prior to an accommodation request, it is important for the employee with a disability when needing accommodations to disclose that need to the employer early.
  6. Whenever defending failure to accommodate claims, it always helps if there is a history of reasonably accommodating the plaintiff in the past.
  7. This is a title I case and obviously from the reasoning of the court, mixed motive is very much in play here.
  8. Differential treatment is a hard thing to pull off because of the requirement of finding someone else similar. Nevertheless, see Caldwell above for an example of when the plaintiff pulled this off.
  9. The ruling puts a premium on thorough discovery.

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